Citation Nr: 18105305
Decision Date: 05/24/18 Archive Date: 05/24/18
DOCKET NO. 01-07 889
DATE: May 24, 2018
ORDER
Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.
FINDING OF FACT
The Veteran’s service-connected disabilities have not been shown to be of such severity so as to preclude substantially gainful employment.
CONCLUSION OF LAW
The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active military service from September 1981 to September 1984.
The TDIU claim was previously before the Board in July 2014 and May 2017 when it was remanded for further development.
Pursuant to the July 2014 remand, the RO was directed to develop the claim for TDIU, to include providing the Veteran an opportunity to complete a formal application for TDIU. The Veteran was sent appropriate notice in March 2016 and was asked to complete and return a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Veteran did not return this form to VA.
In the May 2017, the Board remanded the claim again to provide the Veteran an additional opportunity to provide the necessary information to determine to determine his entitlement to TDIU. The Veteran was sent appropriate notice in May 2017 and was asked to complete and return an enclosed VA Form 21-8940. The Veteran again did not return this form to VA. An examination was also scheduled for a VA examination in July 2017, but the Veteran failed to respond to the scheduling request.
The Board recognizes that the Veteran has had a history of homelessness. However, “the duty to assist is not always a one-way street,” and a claimant has an obligation to provide VA information necessary to substantiate the claim. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Under these circumstances VA has met its notice and assistance obligations and the Board’s prior remand directives have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, his claim will be adjudicated on the basis of the existing record.
Additionally, while the Veteran’s representative identified in their April 2018 appellate brief that the Veteran indicated on a November 1984 claim that he was going to apply for Social Security Administration (SSA) benefits and requested VA obtain such records, the record indicates that the Veteran was not receiving SSA disability benefits. In a May 2008 VA social work note and in a December 2008 VA income-net worth and employment statement the Veteran reported that he received no income from SSA. Accordingly, there is no indication that pertinent evidence that remains outstanding.
Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15.
A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).
The Veteran’s service-connected disabilities are residuals of a fractured right radius; limitation of motion of the cervical spine; residuals of fractured right tibia and lateral malleolus with traumatic arthritis; residuals of nonunion of right ulnar; laceration scars of the left cheek and scalp; residual scar of fracture of right tibia and lateral malleolus; right upper extremity radiculopathy; and hemorrhoids. His combined rating is 70 percent from September 28, 1999. Therefore, the schedular criteria for a TDIU rating are met for the entire appeal period.
The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). An inability to work due to nonservice-connected disabilities or age may not be considered. 38 C.F.R. §§ 4.14, 4.19. In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19.
On January 2000 VA examination the Veteran reported that as a result of his multiple injuries after he left service in 1984 he has not been able to have any regular work and can only do very limited work due to his symptoms. The examiner noted that the Veteran would not specify just what kind of work he has done. The examiner noted that the Veteran’s cervical spine injury and fracture appeared fully healed, but noted that there was a permanent restriction of motion which impaired some function in activities which require moving his head about in different directions. The examiner noted that the Veteran’s right forearm fractures were healed with minor residual abnormality and mild restriction of wrist motion. The examiner opined that this would only cause minimal limitation of function in stressful activities using his right upper extremity. The examiner noted that the Veteran’s right tibial fracture was healed with minor internal rotation deformity and a quarter inch shortening of the right leg compared to the left. He opined that this and the Veteran’s developing osteoarthritis of the right ankle would be expected to cause some impairment of right ankle function in prolonged walking, standing, and climbing activities. Finally, the examiner noted that the heavy callousing of both hands with ingrained dirt implied active use of the right hand equal to the left and indicates little, if any, functional impairment of the right upper extremity.
In May 2008 the Veteran was admitted to a VA inpatient psychiatry program. The Veteran reported being homeless and unable to find work.
In a May 2008 social work note the Veteran reported that his highest grade completed was 13th grade, and that his job skills included buying and selling antiques and blue collar work. He also reported he was unemployed and had no income other than his service-connection compensation.
In a June 2008 VA mental health note, the Veteran reported he was unemployed, but was looking for work.
On a December 2008 VA income-net worth and employment statement, the Veteran reported that he was unemployed, had last worked in 2006 at General Motors, and had 1 year of college education. He reported that he worked performing general assembly at General Motors from May 2006 to November 2006 and had lost 5 days from work due to his disability.
On August 2009 VA examination, the severity of the Veteran’s cervical spine, right arm, and right leg disabilities were examined. Regarding functional limitations of his cervical spine, the examiner noted that in regard to his occupation as an assembly worker and in daily living, he had difficulty in constant activity of the cervical spine, difficulty in driving a vehicle, and difficulty using a computer due to cervical pain. Regarding functional limitations of his right wrist, with respect to his occupation as an assembly work and in daily living, he had difficulty in pushing, pulling, and lifting more than 35 pounds due to right wrist pain. Regarding functional limitations of his right ankle and tibia, with respect to his occupation as an assembly work and in daily living, he had difficulty in prolonged standing and walking for more than 3 hours, walking up and down steps, and climbing due to right ankle pain.
In an April 2011 VA mental health program admission note, the Veteran reported experiencing escalating depression over a variety of stressors including lack of employment, homelessness, the economy, and his overall feeling of a lack of self-worth. The Veteran reported he had been homeless since 2008. He reported that he had ran his own furniture business in Delaware for 15 years, but his business went under. He then said he got a job with General Motors building cars, but was laid off in 2006 after less than 2 years and he did not qualify for any benefits.
In an April 2011 VA social work note, the Veteran reported that he had had lost his job in 2006 and became homeless. He described he had been homeless for 4 years. He reported that he had worked for General Motors in the past and had done some odd jobs. The social worked noted that the Veteran was able and motivated to seek employment, and noted that the Veteran indicated he wanted to work “but not in this economy.”
In an April 2011 VA social work note, the Veteran was asked about what his goals would be for moving from a mental health inpatient facility to a VA domiciliary care facility. He responded that he could not answer the question and did not know if he would be able to work. He stated that he has not been able ot keep a job and knows that it is hard “out there.” The social worker than noticed that the Veteran became very intense in his eye contact and appeared to be paranoid. She noted that the Veteran was not stable to move to a domiciliary program.
In April 2013 and July 2014 VA treatment notes, the Veteran reported that he was employed.
In a May 2017 correspondence, the RO notified the Veteran of the intention to schedule him for an examination in connection with his claim. He was notified that the consequence for failing to report to the examination without good cause and failing to cooperate with the development of his claim could include the denial of his claim.
The Veteran was scheduled for a VA examination in July 2017 in connection with his claim. The examination was canceled because he failed to respond or indicate that he would attend.
The Veteran’s VA treatment records also reflect inpatient psychiatric treatment and that he also failed to report for several additional VA examinations during the period on appeal.
In their April 2018 appellate brief, the Veteran’s representative asserted that a TDIU should be granted because the evidence suggests that the Veteran had been regularly unemployed over the prior 30 years, it is difficult for him to maintain a job even if he is able to obtain one, and his service-connected disabilities prevent him from performing duties required in both labor intensive and sedentary jobs.
The ultimate question of whether the Veteran is capable of securing or following substantially gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013).
As noted, it must be demonstrated that that the Veteran is unable to secure or follow a substantial gainful occupation as a result of service-connected disabilities. While Veteran’s representative identified that the Veteran has had periods of unemployment over the last 30 years, the Board must determine whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.
In this case, the record does not include the adequate information necessary to support the Veteran’s claim. In March 2016 and May 2017, the Veteran was provided VA Form 21-8940, a form designed to obtain the necessary information about his occupational and educational histories to determine entitlement to TDIU. However, the Veteran did not return either of these forms to support his claim. He also failed to respond to the July 2017 VA examination scheduled to determine the functional impairment of his service-connected disabilities.
Without details regarding employment and education history that would be provided in the VA Form 21-8940, the Board cannot determine the Veteran’s employment status during the appeal period. In addition, because the Veteran failed to report to the recent VA examination, there are no current findings as to functional impairment caused by his service-connected disabilities.
The medical records show the Veteran has been unemployed for various periods during the course of the appeal and his service-connected disabilities likely have affected his employment in some way; however, the medical evidence does not show that his service-connected disabilities precluded substantially gainful employment.
There is evidence that nonservice-connected psychiatric problems impacted employment, but the TDIU inquiry is limited to the service-connected disabilities. Most of his service-connected disabilities are orthopedic in nature. The VA examinations and other medical evidence show some functional impairment, but do not show that those disabilities would preclude employment. On January 2000 VA examination, the examiner opined that his cervical spine disability impaired some function in activities require moving his head in different directions; his right arm would only cause minimal limitation of function; and his right leg disability would be expected to cause some impairment in prolonged walking, standing, and climbing. On August 2009 VA examination, the examiner opined that his cervical spine disability caused difficulty in driving and in using a computer due to pain; his right wrist caused difficulty in pushing, pulling, and lifting more than 35 pounds due to pain; and his right leg caused difficulty in prolonged standing and walking for more than 3 hours, walking up steps and climbing due to pain. This reflects that the while the Veteran would have difficulty performing some physical labor, he was not precluded from sedentary employment throughout the period on appeal.
The evidence also reflects that the Veteran had one year of college, and the available work history detailed within the records show that he ran his own furniture business, buying and selling antiques, for 15 years and worked for less than 2 years assembling cars.
The evidence shows that while the Veteran would have some difficulty in performing physical labor due to pain, but likely retained the ability to do some physical labor, such as walking and standing for less than 3 hours and lifting less than 35 pounds, as well as the ability to perform sedentary work. The Veteran reported having 15 years of experience buying and selling furniture and the evidence of record reflects that he would still be able to perform a similar job. While he has some industrial impairment due to his service-connected disabilities, such impairment is recognized by the ratings assigned during the appeal.
Accordingly, the Board finds that the Veteran’s service-connected disabilities, consistent with his educational background and occupational experience, do not preclude all forms of substantially gainful employment.
Entitlement to TDIU is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
M.E. Larkin
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel